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The UK’s highest court has ruled that a plumber who was contracted as a self-employed operative is entitled to workers’ rights, such as sick pay and minimum wage.
Gary Smith, a plumbing and heating engineer who had worked full-time and exclusively for Pimlico Plumbers over a six year period, complained in 2011 to an employment tribunal that he had been unfairly dismissed when he asked for reduced working hours to recover from a heart attack. Pimlico Plumbers had refused his request on the grounds that he was a self-employed contractor and therefore not entitled to protection.
In a unanimous decision, the Supreme Court dismissed Pimlico Plumbers’ appeal and ruled that even though Mr Smith was technically self-employed, he was entitled to workers’ rights. The case can now return to an employment tribunal to address Mr Smith’s complaint that he was unfairly dismissed as a ‘worker’.
Pimlico Plumbers boss Charlie Mullins says he is ‘disgusted by the approach taken’ by the Supreme Court, saying they had ‘bottled the decision’. He comments:
There was never any question that Gary was anything other than a self-employed contractor, until he became ill and his circumstances changed, at which point he decided that it would suit him better to be considered an employee, so he could claim more money from Pimlico Plumbers.
“For those who think this is a victory for poorly paid workers everywhere, against large corporations who exploit their lack of bargaining power, think again! This was exploitation alright, but that of a highly-paid, highly-skilled man who used a loophole in current employment law to set himself up for a double pay-day.”
Commenting on the decision and the implications it will have for the wider gig-economy, Phil Pepper, employment partner at law firm Shakespeare Martineau, says:
The Supreme Court’s decision acts as a stark reminder for organisations who use self-employed contractors to ensure that any agreements are worded correctly – in the physical sense, as well as in practice. The right of substitution was a significant reason why the Supreme Court was unable to find that Mr Smith was genuinely self-employed. Pimlico Plumbers had a very restricted approach to this right, which ultimately worked against them.”
Elaine Howard, an Associate Solicitor at Emms, Gilmore, Liberson, says:
This situation is not always particularly clear-cut and the difficulty arises when there is an overlap between the categories. In Mr Smith’s case, he was paying his own tax and providing his own materials in accordance with self-employed status, but was not free to decide when to work and was working exclusively for one company, in accordance with worker/employee status.”
Chief Executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, describes the decision as ‘one of biggest decisions ever made by the courts on workers’ rights’. She says:
If you wear the uniform, if you drive the branded vehicle, if you only work for one business, you are employed. That means you are entitled to the appropriate protections and adjustments which go with the job, to enable you to work safely and productively. Everyone has the right to a healthy working environment and to that end businesses need to recognise their duties to their workers.
“Thousands of workers like Gary Smith could now find themselves with the added security of benefits like sick pay and holiday pay.”
Since the court’s decision, Charlie Mullins has written a column in Real Business Magazine with his perspective on the case. He said:
Someone asked me over the weekend, how do I now feel after the dust has settled following the judgement. The simple answer is, exactly the same as the moment I walked out of court into a huddle of flashing camera bulbs and TV cameras. The dust isn’t settling.
“In fact, what took place has the potential to whip up a dust storm that will engulf the country causing major issues for businesses and contractors alike. Instead of a clear resolution, the outcome is more uncertainty, which is a cancer that eats away at the economy.”